Will new forum boost compliance with the rules of war?

Next week in Geneva, the International Committee of the Red Cross and the government of Switzerland will unveil recommendations aimed at strengthening the Geneva Conventions.

The proposals, developed over almost four years of extensive consultations, primarily with member states, are intended as a response to the need to improve compliance with international humanitarian law (IHL), something the ICRC says was recognised by all parties to the consultation process.

The plan is to create an annual forum at which key challenges relating to the laws of war can be discussed, and at which states can exchange information on best practices.

The 3 October US airstrike on the hospital run by Médecins Sans Frontières in Kunduz focused public attention on the prohibition on targeting medical facilities, but the proposals now on the table reflect concern over something much deeper: what ICRC president Peter Maurer called “the continued and blatant disrespect of international humanitarian law, most visible in the attacks on hospitals, but also other violations which are outrageous: sexual violence, mistreatment of detainees.”

“It adds up,” he continued, ”to a long list of disrespect which is of course shattering the system as a whole of the Geneva Conventions.”

His words are a sad verdict on a body of law that, in the wake of the savagery of World War II, has been ratified by more countries than any other international treaty.

Brutal violations

Countries may have signed the Geneva Conventions, but they are not honouring them.

“We are witnessing violations all around the world,” Swiss diplomat Francois Voeffray told IRIN. “Some of them very brutal.”

Voeffray has been a key member of the negotiating team drawing up the new proposals. He pointed out that one flaw the team immediately noticed was that the Geneva Conventions, unlike nearly all international treaties and laws, have no review process.

“At the moment there is a lack of a forum where states can discuss the Conventions, where they can meet, and discuss problems and challenges.”

Weak proposals?

Nevertheless, some might question whether the proposed forum is a strong enough response to those ‘”continued, blatant” and “outrageous” violations the president of the ICRC talked about.

The proposal calls for a “a non-binding voluntary mechanism which would bring states together to: 1) exchange information and best practices on key thematic and technical issues, and 2) participate in a voluntary self-reporting process on IHL compliance.”

Reading between the lines, it is clear that discussions that are country or conflict specific are to be avoided. As with the UN Human Rights Council, many member states are reluctant to engage in what they feel is “finger-pointing”. The review process on compliance, a key element of the concept, will be “voluntary” and “self-reporting.”

Behind what looks like weak wording lies the protocol of how the Red Cross Conference traditionally makes policy decisions: by consensus. Switzerland and the ICRC hope this proposal can get unanimous support. “We want everyone in the room,” explained Voeffray.

Helen Durham, the ICRC’s head of legal policy, accepts that some people will find it hard to see a voluntary forum in Geneva as a robust solution to the increasingly brutal violations the ICRC itself has been trying to call attention to.

”I think if people see what happens on TV versus a proposal to have a meeting in Geneva, it’s hard to synthesise,” she told IRIN.

“But you have to take a wider view: it’s about having a place for states to have capacity building. We underestimate at our peril the chance for states to learn from each other.”

“I think it is very easy to be cynical in this space. There is not one clear answer.”

What’s more, despite the frequent complaints that the Geneva Conventions are being violated with impunity, Durham pointed out that thanks to the International Criminal Court and special tribunals such as those established for Yugoslavia and Rwanda, there are now more prosecutions for war crimes and crimes against humanity than ever before.

Sometimes, it takes this kind of exercise to create a momentum

And, perhaps surprisingly, some of those who have witnessed the brutality of modern warfare first hand are offering cautious support to the proposals. Joanne Liu, president of MSF, believes the bombing of the hospital in Kunduz was a violation of the Geneva Conventions, and she welcomes anything that might strengthen them.

“The Geneva Conventions have all the essentials to bring humanity in conflict… Sometimes, it takes this kind of exercise [the proposed forum] to create a momentum.”

Fit for purpose?

The Geneva Conventions were first thought out in the 19th century, and then redrafted in the wake of World War II. There is a lively debate over whether rules that were designed for more conventional wars can still apply today, when we see multiple non-international armed conflicts and a proliferation of armed groups.

Those involved in the Swiss government/ICRC process clearly decided not to tinker with the laws themselves.

The concluding report states: “There was clear agreement in the consultation process that the possible establishment of an IHL compliance system will not involve amendments to the 1949 Geneva Conventions or the adoption of a new treaty for this purpose.”

But David Rodin, a moral philosopher and co-director of the Oxford Institute for Ethics, Law and Armed Conflict, is among those suggesting that the concept of the Geneva Conventions as a completely separate body of law is becoming outdated as the nature of conflict changes.

For Rodin, the principle of “mutually advantageous reciprocity” that initially underpinned the rules of war is being lost, blurring the distinction with human rights law.

“What we are seeing is the very slow, unpleasant and messy collapse of a legal architecture that assumes that war is a domain apart and that it can be separated from the legal structures around civilian life,” he told IRIN.

More precious than ever

But Helen Durham of the ICRC insisted that the fundamental principles of the Geneva Conventions still apply, even if the nature of conflict has changed.

“I would challenge anyone to say that today the principle of distinguishing between those who are fighting and those who are not is irrelevant,” she told IRIN. “I would challenge anyone to say that the prohibition of acts of terror during armed conflict is irrelevant, and that the requirement to treat detainees with humanity is irrelevant.”

And so the Swiss/ICRC proposals next week to the International Conference of the Red Cross and Red Crescent will focus entirely on discussion of broad issues, and voluntary compliance. The Pandora’s box of changing them remains firmly closed.

Liu of MSF, thinking of the hospital in Kunduz, hopes the proposals will be the quiet beginning of something useful, however bland they might sound to some.

“A hospital is the last patch of humanity in a war zone,” she told IRIN.

“The Conventions were written to mitigate the impact of war on civilians… and that is what we will fight for, to keep that humanitarian space in war zones.”